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Bulletins Story:
DUTCH SUPREME COURT CONFIRMS FORMAT RIGHTS DECISION:
CASTAWAY v ENDEMOL
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Date:
22.06.2004
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The titanic battle over ownership of the Big
Brother format appears finally to have been resolved
by the Dutch Supreme Court after a legal battle lasting well over
three years. On 16 April the Supreme Court of the Hague rejected
the appeal by Castaway Television Productions Ltd and Planet 24
Productions Ltd against the decision of the Dutch Court of Appeal
which in turn confirmed the decision of the Dutch Court of first
instance. The trial judge had ruled that the format of
Big Brother is not an infringing copy of
the Survivor format.
The "Survive" format on which the action was based was the same
format which Castaway sought to protect in the Celebrity action
(see our early warning of August 2003). It was originally produced
under the name Expedition Robinson in the summer of 1997 in Sweden,
and then subsequently in other European countries. At around the
same time Endemol Productions was developing a format, which
eventually became Big Brother, that was
broadcast in the autumn of 1999.
Castaway Television asserted that the Survive format is a
copyright work by virtue of its unique combination of 12 elements.
It also claimed that Big Brother is an
infringement of the copyright in that format, and made an
additional unjust enrichment claim against Endemol.
Endemol denied that the Survive format was entitled to copyright
protection. It also denied that the Big
Brother format was an infringing copy of the Survive
format. In June 2000 these claims were dismissed at the trial of
the action, and in June 2002 the Dutch Court of Appeal upheld that
judgment. Castaway and Planet 24 then appealed to the Dutch Supreme
Court.
The Dutch Court of Appeal had taken a pragmatic view of the
issue basing its judgment on the similarities between the relevant
programmes. The Court concluded that:
"A format consists of a combination of unprotected
elements... An infringement can only be involved if a similar
selection of several of these elements have been copied in an
identifiable way. If all the elements have been copied, there is no
doubt. In that case copyright infringement is involved. If
only one (unprotected) element has been copied, the situation is
also clear: in that case no infringement is involved. A general
answer to the question of how many elements must have been copied
for infringement to be involved cannot be given; this depends on
the circumstances of the case."
The Dutch Supreme Court agreed with the Court of Appeal in
deciding that the Survive format was a copyright work, but that the
Big Brother format was not an infringing
copy. It also confirmed all the other elements of the Court of
Appeal decision in finding for the defendants (Endemol).
We now have at least two decisions (one in Holland one in
Brazil) where copyright has been found to subsist in a reality
television format. The Brazilian court found that the
Big Brother format enjoys copyright
protection, and the Dutch court that the format of
Survivor also has copyright protection.
Television formats are at last hitting the legal radar elsewhere in
the world: they will surely be recognised by the UK legal
system in the future.
Jonathan Coad
214
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